A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Wednesday, March 29, 2006

When you've been in prison for 18 months, you may not be welcome at your old place

Sam Kepfield and Sandra Carr won reversals in consolidated cases State v. Portingand State v. Angel, Nos. 91,631 & 91,667 (Kan. March 24, 2006), overturning possession convictions out of Reno County. The COA had affirmed 2-1, with Judge Greene dissenting. The KSC agreed with Judge Greene and rejected the state’s claim that a warrantless search was justified by the common authority doctrine or the apparent authority doctrine. The KSC held that noted that the common authority doctrine should focus on the co-inhabitant’s reasonable expectations or assumption of risk. Interestingly, the KSC cited without elaboration the very recent (two day old) pronouncement in Georgia v. Randolph, where the SCOTUS held that where a co-inhabitant explicitly refuses consent to search, consent of another co-inhabitant is insufficient to justify a warrantless search for evidence.

The KSC also held that the "apparent authority" rule could not save this warrantless search:

the apparent authority rule will save a warrantless search only where officers made a mistake of fact, not where they made a mistake of law. Officer Mora was not mistaken about the facts. . . . Rather Officer Mora reached the erroneous legal conclusion that the facts authorized Hanson to give a valid consent. Under these circumstances, the apparent authority rule does not save the search.

I argued this case at the KSC and the Court was very disconcerted by the paltry state of the record where the state had the burden of proof at the suppression hearing. The KSC agreed with Judge Greene that the COA majority erred by relying on the "lack of evidence that Hanson had permanently surrendered control of the premises, that his access had been restricted, or that he was not welcome. It was improper to draw inferences from the lack of evidence in the record." This is a good cite for appeals from adverse suppression findings.